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Income Tax Appellate Tribunal, MUMBAI BENCH “K” MUMBAI
Before: SHRI SHAMIM YAHYA & SHRI PAWAN SINGH
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “K” MUMBAI
BEFORE SHRI SHAMIM YAHYA (ACCOUNTANT MEMBER) AND SHRI PAWAN SINGH (JUDICIAL MEMBER)
ITA No. 2855/MUM/2018 Assessment Year: 2013-14
Dy. Commissioner of M/s Duty Free Distribution Income Tax-15(1)(2), Vs. Services Pvt. Ltd. D/73-I, TTC Room No. 483, 4th floor, Industrial Area, Turbhe, Navi Aayakar Bhavan, M.K. Mumbai-400705. Road, Mumbai-400020. PAN No. AACCD6134D Appellant Respondent
Revenue by : Mr. Anand Mohan, DR Assessee by : Mr. J.P. Bairagra, AR Date of Hearing : 09/10/2019 Date of pronouncement : 02/12/2019
ORDER PER PAWAN SINGH,JM This appeal by assessee is directed against the order of CIT(A)-55, Mumbai dated 02.02.2018 for assessment year 2013-14. The assessee has raised following grounds of appeal –
Whether on the facts and circumstances of the case and in law, the Id. CIT(A) has erred in deleting the TP adjustment made by the TPO (following thetransactions-by-transaction approach) and directing benchmarking by aggregation of various purchase transactions without there being circumstances for adoption of the aggregated approach to benchmarking?
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Whether on the facts and circumstances of the case and in law, the Id. CIT(A) has erred in deleting the TP adjustment made by the TPO (following the transactions-by- transaction approach) and directing benchmarking by aggregation of various sale transactions without there being circumstances for adoption of the aggregated approach to benchmarking? 3. a. Whether on the facts and circumstances of the case and in law, the Id. CIT (A) has erred in deleting the TP adjustment made by the TPO ignoring the decision of the Hon’ble Delhi ITAT in the case of ACIT Vs. UE Trade Corporation (India) Pvt. Ltd. [45 SOT 197 (Del)], wherein it was held that where the impugned transactions did not constitute a series of connected and indivisible transactions, and each transaction was separate, benchmarking should also be carried out in a transaction-by-transaction manner? b. Whether on the facts and circumstances of the case and in law, the Id. CIT (A) has erred in deleting the TP adjustment made by the TPO by relying on better operating profit margins of the assessee, computed under TNMM, when CUP and not TNMM, had been adopted as MAM voluntarily by the assessee, which was also accepted by the TPO? c. Whether on the facts and circumstances of the case and in law, the Ld. CIT (A) has erred in deleting the TP adjustment made by the TPO by relying on. better operating profit margins of the assessee, computed under TNMM, without rejecting the benchmarking of the transactions made by the assessee and the TPO under CUP? d. Whether on the facts and circumstances of the case and in law, the Id. CIT (A) has erred in deleting the TP adjustment made by the TPO by relying on better operating profit margins of the assessee, computed under TNMM, when the transactions had already been benchmarked under CUP by the assessee, and there is no provision En the Act or Rules for benchmarking a transaction under two methods simultaneously?
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e. Whether on the facts and circumstances of the case and in law, the Id. CIT (A) has erred in deleting the TP adjustment made by the TPO by relying on better operating profit margins of the assessee, computed under TNMM, when benchmarking of the said transactions was available under CUP, and it has been held in various judicial pronouncements that transaction-based benchmarking methods (like CUP) are preferable to profit-based benchmarking methods (like TNMM)? 4. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing the deduction U/s. 10AA in respect of profits of SEZ unit amounting to Rs.1,27,16,447/- by virtue of the provisions of the Special Economic Zone, 2005, considering that the activity of importing goods and its export amounted to providing of 'services' as per the provisions of section 10AA of the Act as [he word 'service' must be taken from the SEZ Act, 2005, ignoring that the Legislature and deliberately excluded the definition of services from SEZ Act from its scope and therefore, the definition of services could not be imported from SEZ Act. 5. The appellant prays that the order of the CIT(A), Mumbai on the above directions be set aside and that of the assessing officer be restored.
Brief facts of the case are that assessee is a company engaged in the business of importer and exporter of goods in the nature of alcoholic products, cigarettes, confectionaries, high quality watches etc. filed its return of income for assessment year 2013-14 declaring total income of Rs.1,27,16,447/-. Along with return of income, the assessee furnished report in Form No. 3CEB reporting international transaction with its Associated Enterprises (AEs). Consequent upon the Assessing Officer made a reference to the Transfer Pricing Officer (TPO) for computation of arm’s length with regard to transaction reported by assessee in its report in Form No. 3CEB. The TPO after granting opportunity to the assessee made upward adjustment of Rs.23,39,605/- in respect of international of purchase and sale with
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its AEs. On receipt of report of TPO, the Assessing Officer included the upward adjustment suggested by TPO.
During the assessment, the Assessing Officer also noted that the assessee has claimed exemption and u/s 10AA of Rs.1,27,16,447/-. The Assessing Officer issued show cause notice to the assessee to substantiate the claim of exemption u/s 10AA. The assessee furnished its submission/detail reply as recorded by Assessing Officer in para 5.1 of his order. After considering the reply of assessee, the Assessing Officer took the view that deduction u/s 10AA is available only in case assessee is engaged either in manufacturing or production of article or things. The word ‘services’ have not been defined in Income Tax Act. The definition of service is provided in section 2(z) of Special Economic Zone (SEZ) Act which cannot be imported in section 10AA of the Act. Accordingly, the Assessing Officer took the view that meaning of word ‘services’ cannot be given a meaning of trading of goods as per the provision of SEZ Act, 2005 and accordingly, Assessing Officer disallowed the claim of section 10AA.Thus, while passing the draft assessment order u/s 143(3) r.w.s 144C. The AO included adjustment suggested by TPO and disallowance of section 10AA. The assessee instead of exercising its option for filing objection before DRP, filed appeal before Ld. CIT(A). The Ld. CIT(A) after hearing the submission of assessee reverse the action of Assessing Officer/TPO on TP Adjustment as well as on disallowance of exemption u/s 10AA. Thus, further aggrieved by the order of Ld. CIT(A), the Revenue has filed present appeal before us.
We have heard the submission of the Ld. DR of the revenue and Ld. AR of the assessee and perused the material available on record. Ground No. 1 to 3
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relates to transfer pricing adjustment. The Ld. DR of the revenue supported the order of Assessing Officer/TPO.
On the other hand, the Ld. AR of the assessee submits that TPO by relying benchmarking of transfer pricing adjustment has done adjustment for following transactions by transaction approach by the contention of the assessee was that it should be done by aggregating or intending during the year. Further, the TPO has thus the adjustment in some of the transactions were there is unfavourable transaction and has not made any adjustment in respect of transactions where there favourable transaction for the assessee. On appeal before CIT(A) the action of Assessing Officer reverse thereby the TP adjustment as well as exemption u/s 10AA was granted to the assessee. The Ld. AR further explained that which are unfavourable. The TPO has selected only those transactions and therefore, assessee had submitted that adjustment should be made for all transactions as the items of purchase and sale are the same and only price is different due to market condition from time to time. The Ld. AR submits that assessee also adopted Transaction Net Margin Method (TNMM) in its transfer pricing study report. According to which Operating Profit Margin (OPM) was 2.13% which is significantly higher than OPMto TNMM comparable companies at 1.66% and 0.84% average of which is 1.25% and on both the reasons the Ld. CIT(A) accepted the adjustment in respect of transaction of purchase and sale with its AEs situated in Sri Lanka and only transaction of sale AE situated in UAE.
We have considered the rival submissions of the parties and perused the material available on record. During the assessment, the Assessing Officer noted the assessee as reported following international transaction on purchases of traded goods with AEs of Rs 11,20,297/- –
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Name and country of the Total amount paid/received Method used for determining the Associated Enterprises with whom Arm’s Length Price the International transaction has been entered into As per Books As computed by of Account the assessee (Rs.) having regard to the Arm’s length price (Rs.)
Flemingo Duty Free (Private) 1,11,20,297/- 1,11,20,297/- CUP Method Limited, Srilanka
As per its transfer pricing study report, the assessee claimed the transaction as transaction as arm’s length price in the following manner:
Name and country of the Total amount paid/received Method used for determining the Associated Enterprises with whom Arm’s Length Price the International transaction has been entered into As per Books As computed by of Account the assessee (Rs.) having regard to the Arm’s length price (Rs.)
Flemingo Duty Free (Private) 1,11,20,297/- 1,19,03,916/- CUP Method Limited, Srilanka
With respect to international transaction of sales of traded good of Rs. 32,60,35,225/- as per Form 3CEB as under;
Name and country of the Total amount paid/received Method used for determining the Associated Enterprises with whom Arm’s Length Price the International transaction has been entered into As per Books As computed by of Account the assessee (Rs.) having regard to the Arm’s length price (Rs.)
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Flemingo Duty Free (Private) 54092077/- 54092077/- CUP Method Limited, Srilanka
Flemingo international UAE 27,19,43,148/- 271943148/- CUP Method
326035225/- 325105028
As per its transfer pricing study report, the assessee claimed the transaction as transaction as arm’s length price in the following manner
Name and country of the Total amount paid/received Method used for determining the Associated Enterprises with whom Arm’s Length Price the International transaction has been entered into As per Books As computed by of Account the assessee (Rs.) having regard to the Arm’s length price (Rs.)
Flemingo Duty Free (Private) 54092077/- 54053525/- CUP Method Limited, Srilanka
Flemingo international UAE 27,19,43,148/- 271051493/- CUP Method
326035225/- 325105028
The TPO asked the assessee to furnish, the details of transaction-wise data of the purchases. The assessee furnished the required details before the TPO. After considering the detail furnished by assessee, the TPO with regard to the purchase of goods was of the view that transaction of purchase with international AEs is an excess of ALP by Rs.6,01,424/- thereby suggested upward adjustment of Rs.6,01,424/-. With regard to sale of traded goods the TPO concluded that the transaction of purchase with AEs are less than by ALP of Rs.17,38,181/-. Accordingly the TPO made the adjustments of Rs.23,39,605/-. The Assessing
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Officer passed the assessment order by incorporating the suggested upward adjustment.
Before Ld. CIT(A), the assessee made similar contention as asked before us. The Ld. CIT(A) after considering the submission of assessee concluded that the TPO should have considered the purchase amount sale on all the items and the comparable purchase amount sale and whenever comparable was not available as compared with purchase price and final sale price as which product was sale to customer. Similarly, in respect of sale goods traded, the TPO should have considered the total amount of sale. The total amount of comparable sale and in case not comparable is available then final sale price on which product was sale to customer should have been taken. The Ld. CIT(A) also considered the benchmarking under TNMM wherein the assessee demonstrated OPM at 2.16% which was admittedly higher than comparable companies and allow the relief to the assessee. We have seen that the Ld. CIT(A) passed the order after completed factual analysis of the case, which needs no interference. No contrary fact is brought on record to our notice by Ld. DR to show to demonstrate that the decision arrived by Ld. CIT(A) is contrary to the facts. No contrary law is brought to our notice to take other view. Therefore, we do not find any infirmity in the order passed by Ld. CIT(A).
In the result, ground No. 1 to 3 raised by the revenue are dismissed.
Ground No. 4 and 5 relates to disallowance of determination u/s 10AA. On the other hand, the Ld. DR for the revenue relied upon the order of Assessing Officer. The Ld. AR of the assessee submits that these grounds of appeal are covered in favour of the assessee by the decision of Tribunal in assessee’s own
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case for AY 2010-11, 2011-12 and 2012-13. The Ld. AR further submits that for AY 2010-11 and 2014-15 the Department was not filed any appeal. Similar order passed by CIT(A).
We have considered the rival submissions of the parties and perused the material available on record. We noted that in assessee’s own case for AYs 2009- 10, 2010-11, 2011-12 and 2012-13, similar disallowance was made. However, on appeal before CIT(A), the assessee was allowed relief.On further appeal to the Tribunal,the order of CIT(A) was confirmed. For completion of this orderwe refer the order for AY 2009-10 and 2010-11 in ITA No. 2753/M/2015 dated 13.07.2016 wherein on identical ground of appeal, the co-ordinate Bench passed the following order :
“3. We have considered the rival submissions and perused the material available on record. Facts in brief are that the assessee, claimed to be engaged in the business of duty free import and export of goods, mainly sold at duty free shops in India and abroad, mainly in cigarettes and foreign made liquor and claimed deduction amounting to Rs.48,78,973/- under section 10AA of the Act. During scrutiny proceedings the learned Assessing Officer asked the assessee to furnish necessary details which were filed by the assessee. The assessee vide letter dated 13.10.2012 and 09.03.2013 made submissions claiming that the assessee is a trading concern and engaged in trading service of import and export of FMFL and cigarettes from the SEZ and therefore eligible for deduction under section 10AA. The assessee placed reliance on section 51 (1) of the SEZ Act read with rule 76 of SEZ Rules, 2006, wherein the “services” has been defined to include trading. However, the learned Assessing Officer disallowed the claimed deduction and taxed the same under the normal provisions of the Act.
3.1 On appeal before the learned CIT(A) the factual matrix/ submissions as mentioned in para 3.2 of the impugned order were considered and by following various decisions including Hotel Ashoka (ITDC) vs. ACIT (2012) STPL (Web) 89 (SC), Gitanjali Exports
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(ITA No. 6947 & 6948/Mum/2011), Goenka Diamonds and Jewellers Ltd. 146 TTJ 68 (JP), Midas DFS Pvt. Ltd. 37 CCH 264 (Kol.), decided in favour of the assessee. The Revenue is aggrieved and is in appeal before this Tribunal.
3.2 If the observation made in the assessment order, leading to addition made to the total income, conclusion drawn in the impugned order, material available on record, assertions made by the ld. respective counsel, if kept in juxtaposition and analyzed, we find the claimed deduction under section 10AA of the Act was started in 2007 for which approval was granted by CSEZ Development Commissioner, permitting the assessee to establish the unit at SEZ to undertake its trading activity. The assessee purchases item like cigarettes and foreign liquor, beside other foreign suppliers, from Flamingo DFS Pvt. Ltd. and from Flamingo Duty Free Shop Pvt. Ltd. having their registered office at Navi Mumbai. These two concerns import the item from aboard and Flamingo got the licence to operate duty free shops at various air ports/sea ports in India and also has bonded warehouses in different cities in India wherever its duty free shops. The purchases made by the assessee are by way of high seas purchases wherein the goods are sold by Flamingo to the assessee, while the cargo is on the high seas. These are done through high seas sales contract. The necessary documents were duly examined by the learnedCIT(A) and this factual matrix is not controverted by the Revenue. Original bill of lading, bill of entry were also examined. The purchases were made on the high seas and not in India. There is not a single instance where the local purchases were made within in India. We find that the ratio laid down in the cases like Gitanjali Exports, Midas DFS Pvt. Ltd. and Goenka Diamond and Jewellers Ltd. (supra), support the case of the assessee. The issue of allowability was duly considered by the Jaipur Bench in 146 TTJ 68 (supra). The totality of facts/provisions of SEZ Act and SEZ Rules provides that the benefit of section 10AA is available on trading. The ratio laid down in Gitanjali Exports Corporation and Gitanjali Gents Ltd. also supports the case of the assessee. The relevant findings have been reproduced at page 6 on wards of the impugned order. Considering the totality of facts and the judicial pronouncements discussed hereinabove we find no infirmity in the conclusion drawn by the learned CIT(A).”
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Further, in assessee’s appeal for AY 2009-10 and 2012-13, the co-ordinate Bench passed the following order -
Both the issues are in connection with the allowance of claim of the assessee u/s 10AA of the I.T. Act, 1961 in respect of profits of SEZ unit amounting to Rs.2,82,47,713/-. The Assessing Officer disallowed the claim of the assessee on account of this fact that the assessee failed to furnish form as per Rule 16D and Form no. 56F ofthe Act with the return of income and the assessee was involved in trading activities. The Assessing Officer is also view that the deduction u/s 10AA of the Act was allowable only to the undertaking which export the articles products/manufacturer by it. The assessee filed an appeal against the said order before the CIT(A) who allowed the claim of the assessee. The contention of the Ld. Representative of the Department is that the case of the assessee does not come within the ambit of necessary condition of SEZ for claiming deduction us/ 10AA of the Act, therefore, the CIT(A) has wrongly allowed the exemption u/s 10AA of the Act, therefore, the finding of the CIT(A) is not justifiable and is liable to be set aside. However, on the other hand, the Ld. Representative of the assessee has strongly relied upon the order passed by the CIT(A) in question. Before going further, we deemed it necessary to advert the finding of the CIT(A) on record: -
“2.4.2 Ground No. 2 Is general in nature and hence, need riot be adjudicated separately.
2.4.3 Before coming to the merits of the disallowance which has been agitated vide Ground Nos. 3 to 5, it is important to note that the appellant vide Ground No. 6 has refuted the Ld. AO's observation that it had not obtained and filed Audit Report in Form No. 56F during the course of the assessment proceedings. In this regard, it has been stated that under the e-filing system, no attachment can be filed with the Return electronically filed with the Department and hence, unless the Ld AO required Audit Report to be submitted, it could not have been done Further, it has also been stated that the said Audit Report was produced before the Ld AO in the proceedings u/s 263 and obviously the same was available before the Ld, AO
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even in the proceedings giving effect tothe Order u/s 263 and hence, the observations made by the Ld. AO are incorrect.
2.4.4 Having considered the issue and the material available on record, it is seen that the Audit Report in Form No. 56F was filed with the AO in the course of proceedings u/s 263 of the Act. Further, as per Circular No.03/2009 of the CBDT, it has been provided that the Returns to be furnished electronically shall not be accompanied by any attachments/annexures and as per clause 7(ii) therein, if called for by any Income Tax authority during any proceedings under the Act, it shall be incumbent upon the assessee to furnish/produce the document including any statutory form or report of Audit. Moreover, the said Audit Report in Form No.56F was also filed before Ld. AO during the course of the proceedings impugned before me, vide appellant's letter dated 23.022015, a copy of which has also been produced during the course of the current appellate proceedings. The appellant has also placed reliance on the following decisions in support of the claim that even if the Audit Report in Form No. 56F is filed at the appellate stage, the benefit of exemption u/s 10A cannot be denied: 1. CIT, Central Circle vs American Data Solutions India (P) Ltd. [2014] 45 taxmann.com 379 (Karnataka) 2. ITO, Ward-2(3), Kolkata v. Last Peak Data (p) Ltd. (2015) 63 taxmann.com 45 (Kolkata Trib.) 3. CIT-II Vs. Mantec Consultants (P) Ltd. (2009) 178 Taxman 429 (Delhi).
2.4.5 In view of the above and the fad that Ld AO has not found any fault with Audit Report in Form rjo.56F available on his record during the proceedings giving effect to Order u/s 263, i am constrained to hold that exemption u/s 10A could not have been denied for this reason. However, as regards the merits, I shall now turn to Ground Nos.3to5.
2.4.6 Ground No. 3 is against the action of the Ld. AO in not allowing deduction claimed by the appellant u/s 10AA of the Act. Ground Nos* 4 & 5 are also related to the above said Ground No. 3 and hence, these three grounds are being adjudicated simultaneously. Ld. AO disallowed the appellant's claim by holding
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that the appellant was neither a manufacturer nor a producer ofany article or things. Further, he also held that the appellant's claim that it was a service provider could not be considered with reference to the definition of the term 'services' as provided in the SEZ Act that the appellant wanted the Ld, AO to follow. Ld. AO further held that the provisions of a taxing statute dealing with machinery provisions have to be construed by the ordinary rules of construction and as the Legislature deliberately excluded the definition of 'services' from SEZ Act to be imported into the IT Act, the same could not be taken help of by the appellant for claiming exemption of its income as it was not doing any value addition.
24.7 Per Contra, during the course of the appellate proceedings, Ld. AR stated that Section 51 of the SEZ Act contains a nonobstante clause vide sub-section (1) stating that provisions of SEZ Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. It was also brought to my notice that my Ld. Predecessor in A.Y. 2010-11 in appeal No. ClT(A)-22/ITO-10(3)(iyiT-18S/2013-14 dated 16.02.2015 had allowed the appellant's appeal by holding that sale to customers by the appellant done on a "bond to bond transfer" basis amounts to re-export and hence, it was eligible for deduction u/s 10AA of the Act. Similarly, in A.Y 2011-12 in appeal No ClT(A)- 22/DCIT(OSD)-10(3)/JT-91/14-15 dated 19.02.2016 I had allowed the appeal following the above said decision. In this regard, further reliance is placed on the decisions of Hon'ble Mumbai Bench of ITAT in the case of Geetanjali Exports Corporation Ltd. and Geetanjali Gems Ltd. in lTANo. 6947 & 6948/Mum/2011 dated OB.05.2013. 2.4.8 In view of the fact that similar issue was also adjudicated in A.Ys. 2010-11 and 2011-12 and there being no change in the facts and circumstances in the present appeal, respectfully following the same, the ground raised are allowed in favour of the appellant.”
On appraisal of the above mentioned order, we noticed that the firstly the claim of the assessee was declined u/s 10AA of the Act on the ground of non-furnishing the form no.
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56F of the Act. The CIT(A) analysis of record and arrived at this conclusion that the form no. 56Fof the Act has been furnished by assessee even the course of proceeding u/s 263 of the Act. The assessee filed the return of income electronically which was not accompanied by any annexure. Even at the time of filing the return, filing of the other documents are not necessary but are liable to be produced as when required by AO. The Form no. 56F of the Act was also produced by assessee before the CIT(A) by virtue of letter dated 23.02.2015. No doubt, in the said circumstances, the claim of the assessee is not liable to be declined u/s 10AA of the Act. The CIT(A) while passing the order relied upon the law mentioned above, therefore, there is no need to repeat the same. So far as decline the claim of Section 10AA of the Act on the ground of that the assessee was neither manufacturer nor any producer of articles or things we noticed that the CIT(A) has decided the matter of controversy on the basis of the decision of earlier year in the assessee’s own case. The CIT(A) also observed that the claim of the assessee was also allowed by the CIT(A) for the A.Y. 2010-11 & 2011-12. The CIT(A) has decided the matter of controversy in favour of the assessee on the basis of the decision of Hon’ble ITAT Mumbai in the case of Geetanjali Exports Corporation Ltd. in ITA. No.6947 & 6948/M/2011 dated 08.05.2013. Nothing came into notice that the order of the CIT(A) has been reversed or varied in the appeal. No law contrary to the law relied by the CIT(A) has been produced before us. Taking into account, all the facts and circumstances of the mentioned above we are of the view that theCIT(A) has passed the order judiciously and correctly which is not liable to be interfere with at this appellate stage. Accordingly, these issues are decided in favour of the assessee against the revenue.”
10.1 Considering the consistent of the Tribunal wherein the assessee is allowed relief on identical grounds of appeal on similar set of facts. Therefore, we do not find any infirmity in the order of Ld. CIT(A). Even otherwise, the Ld. CIT(A) while granting relief to the assessee has followed the decision of Tribunal in AY 2009-10, 2010-11, 2011-12 and 2012-13. In the result, these grounds of appeal are dismissed.
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In the result, the appeal of the revenue is dismissed.
Order pronounced in the open Court on 02/12/2019. Sd/- Sd/- (SHAMIM YAHYA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai; Dated: Rahul Sharma, Sr. P.S. Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. BY ORDER, (Assistant Registrar) ITAT, Mumbai